Her Majesty the Queen - v. -, 2016 SKPC 164

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 164 Date: December 15, 2016 Information: 38284512 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Zachary Marckoski Appearing: Suzanne Young For the Crown Suzanne Jeanson For the Accused TRIAL DECISION M. GORDON , J INTRODUCTION [ 1 ] On November 24 th I gave my decision on the

Section 10(

b) Charter application advanced on behalf of the accused. That decision appears at R v Marckoski , 2016 SKPC 163 . In

summary I found at the earlier stage when charged with the weapons offences that the police officer failed to provide a Prosper warning to the accused. However, no evidence was obtained so it was not necessary to consider a remedy. The second incident was when Mr. Marckoski was arrested on the drug charges. At that time I found on the evidence that Mr. Marckoski was clearly provided with his rights to counsel. He indicated he understood and he unequivocally responded that he did not want to contact a lawyer.

[ 2 ] By agreement all admissible evidence on the voir dire would be applied to the trial proper. [ 3 ] The trial continued before me on November 24 th however, I had heard evidence from two officers prior who had not been sworn in on the voir dire but sworn in on the trial. They were available on October 18 th and their evidence can be summarized as follows. Constable Jim Biniaris has been a police officer for seven years in Moose Jaw and was on general duty July 10, 2016. He was on patrol alone in uniform in a marked police vehicle.

As a result of a 911 call through dispatch he responded to a complaint at 313 River Street East where a couple of males were trying to kick in a door. On his way he noticed a red BMW car proceeding west. The officer recognized Mr. Marckoski as a passenger in the vehicle. Constable Biniaris was aware that there were outstanding warrants for Mr. Marckoski. Constable Biniaris confirmed that the warrants were still valid with his dispatch. He pulled the BMW over at the intersection of 3 rd Avenue Northeast and High Street. He went to the driver’s side to obtain the licence and registration.

A youth J.B. was identified as the driver and owner of the vehicle. Constable Biniaris saw the accused step out of the passenger side of the vehicle. Constable Rice was also on site and dealt with the passenger Mr. Marckoski. Constable Biniaris primarily dealt with the co-accused and asked her if there was anything in the car he should know about. She directed the officer to the cannabis marihuana in the closed centre console. The officer placed the female co-accused in the back seat of the police vehicle and then spoke to the other officers on scene being Constable Rice and now Constable Schwabe.

He returned to his police vehicle and arrested the co-accused for possession of marihuana under section 4(1) of the Controlled Drugs and Substances Act . He also read her her rights to counsel. He transported the co- accused to the city police cells and turned her over to Sergeant Williamson and Constable Rice. Constable Schwabe remained at the scene and also searched the vehicle. At this time Mr. Marckoski was not present and Constable Biniaris had no direct contact with him except to confirm with dispatch that the warrants were still in effect.

Constable Biniaris searched the vehicle and Constable Schwabe catalogued the items that were found. They are depicted in the photos that are part of exhibit P-4. [ 4 ] Crown and defence filed an agreement with certain admissions which is exhibit P-1 in these proceedings. Several photograph booklets were also made full exhibits by agreement. Exhibit P-1 paragraph 9 lists the exhibits that were seized from the 2004 BMW Sedan as follows: a. Under the passenger seat: - Small vile containing baggies of methamphetamine, a substance contained in

Schedule I of the CDSA, packaged in 8 small zip-lock baggies in the following amounts: 0.5g x 3; 0.4g x 1; 0.9g x 2; 0.8g x2; b. In the front centre console; - Bag containing 18.2g of marihuana - Black Acer cell phone c. In the purse of Jasmin Bokamyer located in the back seat: - Two iPhones - Baggies of methamphetamine packaged as follows: i. 0.6g; ii.

Empty bag containing trace amounts of methamphetamine. - A 4.3g vile containing methamphetamine - “Little Black Book” notebook containing names of buyers, amounts owing and what was purchased - Blue glass pipe - Folding pipe - Cheech grinder - Clutch containing Bokamyer’s driver’s license d. In the rear ashtray between the two seats: - Glass pipe e. In a box in the backseat:

- Purple bong f. In the trunk: - Blue Walmart shopping bag containing four more notebooks, two of which contained names and amounts owing; one of which contained a list reading “amount sold, amount owed, price, quantity, date, person” - PS3 video game system - N63 video game system - Video games g. In the cup holder between the front seats: - Black Alcatel cell phone [ 5 ] On cross-examination Constable Biniaris agreed that in the female driver’s purse was personal I.D and also a brown wallet with I.D. for Douglas Wales and I.D. for Steven Conneault.

The officer also noted two beer cans, various iPhones, advil and a blue pipe. In particular defence counsel pointed out photo 5 that shows the blue bandanna in a cup holder. The officer stated this photo was taken after both accused were out of the car. The officer said he had not moved any of the items in the car before taking photographs. [ 6 ] Photo number 11 shows the area under the passenger seat. This officer did not take this photo and did not see it being it taken. Constable Biniaris agreed that it was the co-accused that said there was marihuana in the console.

The police were unaware of this until she volunteered that information. [ 7 ] Constoble Schwabe was sworn in on the trial. He has been an officer in Moose Jaw for four years. Again he was on general patrol duty on July 10, 2016 and working alone. He was driving a marked police vehicle and in full working uniform. He was also dispatched to this complaint at 313 River Street. He recalls Constable Biniaris arriving first. Constable Schwabe did not see anybody around. He heard on his radio that Mr. Marckoski was in a red car in the area of Third Avenue East.

Constable Schwabe pulled up behind Constable Biniaris who already had this vehicle stopped. Constable Rice also arrived. At this time Constable Rice was on the passenger side of the car and had Mr. Marckoski handcuffed and was taking him to the police vehicle. Constable Schwabe did not have any direct contact with the accused. Constable Biniaris was speaking to the driver, the co-accused. Constable Schwabe was aware that Constable Rice had arrested Mr. Marckoski on warrants and that there was a handgun and a knife seized.

He was advised by Constable Biniaris to search the vehicle and was made aware that the co-accused had said there would be cannabis marihuana in the vehicle in the centre console area of the vehicle. Constable Schwabe began a search of the vehicle, took photos and placed numerous items out on the trunk of the vehicle. [ 8 ] Constable Schwabe noted Photo 11 which is taken directly under the passenger seat. He described a clear plastic pill vile three to four inches under the seat.

There was a number of baggies, plastic bags of crystal meth he assumed. [ 9 ] On cross-examination Constable Schwabe agreed that the console where the marihuana and acer cell phone were found was closed. He said that the cell phone was receiving texts at the time. Constable Schwabe did not move anything in the vehicle before he took pictures and the blue bandanna was found in the centre cup holder. Constable Schwabe noted in Photo 11 that the vile under the passenger’s seat was closer to the driver’s side and you could not see it by sitting in the passenger seat. The officer said that to his knowledge Mr.

Marckoski has no aliases. [ 10 ] By consent the report of the expert was made a full exhibit. The Crown concluded its case. [ 11 ] The defence called one witness on the trial that being the accused Zachary Marckoski. Mr. Marckoski testified that on July 10 th he was living with his friend Justin. He admits to being a passenger in a vehicle on July 10, 2016 that was owned by the co-accused J.B. He had been in the car two or three times prior but he had never driven the car as he does not drive a standard. He had known the co-accused for about one year.

[ 12 ] At Zachary’s request the co-accused picked him up from his cousin’s house. They planned to hang out for the day. Zachary says he had just been in the car about two minutes when they were stopped by the police. Zachary admitted that he had used drugs earlier, a half a gram of cocaine and drank about a quarter to a half of an 18 case of beer. Zachary admitted he had cash on him when he was arrested as he had just been paid “under the table” by his cousin for helping him out with some flooring. He owed Justin $600.00 for rent. He denied that any of the money was from the sale of drugs. Mr.

Marckoski denied that he had any knowledge that there were illegal drugs in the car. Zachary denied putting any drugs under the front seat. He said he did not know what was in the purse of the co- accused. He did not know what was in the trunk of the car. He never had keys to the vehicle. Zachary admitted that he was wearing a blue bandanna around his neck and he pulled it off and put it beside him when stopped by the police. Zachary testified he removed the bandanna to avoid problems as bandannas can be associated with being a gang member. He admitted to being in a gang at one time.

Zachary testified that Constable Rice came and woke him up when he was in cells and gave him some paperwork. He does not recall the conversation but he emphatically denied that he said to Constable Rice anything about all the drugs being his. Zachary said that K.L. was a friend of his but Q. he had only heard of and did not know him. Zachary does not go by any of these nicknames or the name California. Zachary said he was carrying a BB Gun and a knife for protection as he had slept with some guys girlfriend who was threatening to kill him. [ 13 ] Ms. Young conducted a thorough cross-examination of Mr. Marckoski.

Much of it was centred on the lay out of the vehicle and the location of the drugs. Zachary admitted that in photograph number 5, exhibit P-4, he could see the radio and compartments just a few inches away. He could also see over to the drivers side and into the backseat. He could see the cardboard box in the backseat but did not notice the bong sticking out of the top. He also agreed that photo 13 showed the rear ashtray with the pipe and change.

He agreed that the packages under the passenger seat contained drugs were within his arms reach and that the driver would have a harder time reaching under the passenger seat. He agreed that exhibit P-7 shows the cell phone found in the console. He admitted using cocaine prior to getting into the car he said he was worried about the blue bandanna when the police stopped because this can be associated with gangs and drugs. He said that he had never heard of the dial a dope operation. He said there was no specific plan that day he was just going to hang out with the co-accused.

He did not agree it was an odd time to pay rent. Zachary said he knew the co- accused did drugs but did not know she dealt drugs. Zachary said he did not see her with a cell phone that morning and did not know anything about the message sent at 6:50 a,m. about a drug deal. SUBMISSIONS OF COUNSEL [ 14 ] I will summarize the Crown’s argument first after all it is the Crown that bears the burden of proof beyond a reasonable doubt. CROWN [ 15 ] The only issue is whether the accused had possession of the drugs that were found.

If I answer that question in the affirmative then the defence admits that possession for the purposes of trafficking has been proven. The Crown’s position is that both Mr. Marckoski and the driver and registered owner of the vehicle the co-accused were engaged in a drug operation. Possession is defined in

section four of the Criminal Code and

section 21 defines who is a party to the offence. Both these individuals, the Crown argues, played an active although not identical role in this drug operation. The elements of the offence are discussed in R v Morelli , 2010 SCC 8 , [2010] 1 SCR 253. At paragraph 17 the court discusses the elements of constructive possession. The evidence against the accused can consist of real evidence and circumstantial evidence. The Crown argues that Mr. Marckoski the passenger in the vehicle had control over the passenger seat area at the very least. Mr.

Marckoski put his blue bandanna under the seat where certain drugs were found. The drugs were only a few inches under the seat. The evidence of Constable Rice supports this as the police officer testified that Mr. Marckoski put his hands in exactly the same area as where some of the drugs were found. [ 16 ] The Crown argues that the accused had knowledge of the drugs that were found under the passenger seat. The Crown points to considerable amount of circumstantial evidence which taken cumulatively supports the Crown’s position. Ms. Young reviewed this evidence in some detail.

She briefly touched on the various pieces of evidence which are consistent with drug trafficking. These are as follows: - the accused had a folding knife and loaded BB gun on his person; - the accused had $1,040.00 in cash consisting of 18, twenty dollar bills on his person; - the accused had a cell phone in his pocket; - there was an acer cell phone in the unlocked console that was receiving messages at the time and at 3:00 a.m. had received a message referring to Zack;

- this cell phone and bag of cannabis marihuana were located in the centre console which was closed but unlocked within armsreach of the passenger; - the accused admitted he used drugs as recently as earlier that morning and that he used to be a gang member; - the accused had access to all six cell phones in the vehicle; - the cardboard box in the backseat behind the driver’s seat had a blue bong sticking out the top; [17] The Crown urges the Court to focus on the big picture and consider all these pieces of evidence in there entirety.

The expertreport being exhibit P-5 refers to all these factors as being markers or consistent with someone who is involved in dealing drugs. TheCrown stated that Mr. Marckoski could be the enforcer/protector or runner and the co-accused secretary. However, the Crown statedthat it does not need to prove the exact role of Mr. Marckoski. The Crown relies on the case of R v To (1992), (BCCA), 16 BCAC 223 (CA) Vancouver Registry Court of Appeal where circumstantial evidence based on experience andcommon sense was sufficient to convict.

In R v Russell, 2011 BCCA 277 [Russell] the court found there was ample circumstantialevidence to convict. [18] Finally the Crown submits that the spontaneous confession of the accused when combined with the circumstantial evidenceoverwhelming supports a conviction. However, even if I put no weight on the confession there is more than sufficient circumstantial toconvict according to the Crown. DEFENCE SUBMISSIONS [19] Ms. Jeansen submitted that the court should have a reasonable doubt as to whether Mr. Marckoski was in possession of any ofthe said drugs.

She argues that all the Crown’s evidence points to the fact that it was the co-accused driver and owner of this BMW whowas in possession of the drugs. Specifically she states that the small vile containing baggies of methamphétamine found under thepassenger seat. Initially these same drugs were not visible to the police. In addition these bags were found closer to the left hand side ofthe passenger’s seat rather than the right hand side. It would only be speculation according to the defence to conclude that the accusedput the drugs under the seat.

An equally and reasonable conclusion is that someone else put the drugs in that location, perhaps the co-accused or one of the other individuals who’s identification was found in the purse of the co-accused. In addition the accused deniesthat he was aware of these drugs and he denies that the drugs were his. Ms. Jeansen states that the Russel case is different in that theaccused was the driver of the vehicle although not named as the first person or the main person in the rental contract.

The court foundthat Russell had control of the space around him including the drugs. [20] The defence states that the analysis of the Acer cell phone (exhibit P-7) alone should give the court a reasonable doubt. Whenanalysed there were many messages and the majority did not make any reference to Mr. Marckoski or Mr. Marckoski being involved inany drug dealing. [21] In addition, Mr. Marckoski testified. He denied the conversation that Constable Rice related. She notes that Constable Ricedid not make any notes of this crucial conversation until 17 days later.

There is no way to test the evidence of Constable Rice and theaccuracy of his recall about that conversation. The defence suggests that Constable Rice is over confident about his memory. She notesConstable Rice was arguably wrong on other things such as the location of the blue bandanna. [22] Finally defence counsel submitted that once the court considers all the evidence it points to the co-accused being the soleowner of all the drugs and drug paraphinelia in the vehicle. The BMW was registered to the co-accused. The co-accused directed thepolice to the marihuana in the console.

The cardboard box with the bong sticking out were behind the driver’s seat. The co-accused bagand purse were located with cash, drugs and the identity of other individuals and the contents in the trunk of the car with record books ofdrug transactions indicated they belonged to the co-accused. ANALYSIS

[23] The only issue is whether Zachary Marckoski had knowledge and control of the drugs found in the motor vehicle registered tothe co-accused in which he was a passenger and therefore whether he had the drugs in his possession. The onus is on the Crown to provebeyond a reasonable doubt all the essential elements of the offence of possession. This can be done by direct or inferred fromcircumstantial evidence.

To convict on the circumstantial evidence the court must be satisfied beyond a reasonable doubt that the onlyrational inference that can be drawn from this circumstantial evidence is that the accused is guilty of the offence (see R v Griffin, 2009SCC 28, [2009] 2 SCR 42 at para 33). [24]

Section two of the Controlled Drugs and Substances Act adopts the definition of possession (found in section 4(3) of theCriminal Code). Three types of possession are referred to in section 4(3) namely;

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest. has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [25] Various cases also state the requirements for the various types of possession as follows R v Pham, (ON CA), 2005 203 CCC 3rd 326 (Ont CA) affirmed 2006 SCC 26 , [2006] 1 SCR 940 at para15 the court states as follows: [15] In order to constitute constructive possession, which is sometimes referred to as attributive possession, there must be knowledgewhich extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed . . . [16] In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession . . . [26] R v Webster, 2008 BCCA 458 discusses the elements of each form of possession at paragraphs 40 - 42 as follows: [40] The elements of each form of possession are set out in R v Pham, (2005) (ON CA), 203 CCC (3d) 326 (Ont Ca)affirmed [2006] 1 SCR 940, 2006 SCC 26. With respect to deemed possession under s. 4(3)(b), “there must be knowledge, consent and ameasure of control on the part of the person deemed to be in possession”: para. 16.

All these elements are present with respect to thestandard required to arrest Mr. Webster on the basis of “finds committing”. [41] With respect to ‘knowledge”, given the odour of marihuana in the Mustang, it cannot seriously be suggested that there is noobjective basis to support a reasonable belief that Mr. Webster was aware that marihuana had very recently been smoked in his vehicle. Further, and more importantly, it cannot seriously be suggested that there is no objective support for a reasonable belief that Mr. Websterwas aware of the “joint “ behind Mr.

Lepitre’s left ear. [42] Turning to “consent and control”, what must be kept in mind is that for a person to be deemed to be “in possession” of an item, he orshe need not have in fact exercised power over it; all that is required is an ability to exercise some power . . .

[27] In the recent case of R v Biggs, 2016 ONCA 910 [Biggs] the Court of Appeal allowed the appeal and entered acquittals on thecharge of possession of methamphétamine for the purpose of trafficking as well as the charge of possession of marihuana.. The mainissue was whether there was sufficient evidence to entitle the trial judge to find that the accused (appellant) was in constructivepossession of the drugs. The court discusses and refers to the Morrelli case from the Supreme Court as well as the Pham case amongothers.

In Biggs the court was not prepared to find that the evidence which was entirely circumstantial supported a conviction forpossession. At paragraph six the court states as follows in R v Tyrell, 2014 ONCA 617 Dohertyja said at paragraph 30: Proof of knowledge . . . demands a subjective inquiry. The question is “ what did the accused know” and not “what ought he to haveknown”: see R. v. Beaver, (SCC), [1957] SCR 531 , at pp. 538, 541-42. [28] I must consider the totality of the evidence to decide if the Crown has proved the essential elements of the events beyond areasonable doubt.

The credibility of the witnesses is a significant issue and therefore an application of the instructions in R v W.D., (SCC), 1991 63 CCC 3rd 397 Supreme Court of Canada must be undertaken. Many cases of discussed the correct applicationof these principles. It is clear that the W.D. analysis has no application to individual items of evidence. Much has been written by steptwo in the W.D. analysis.

In R v Chalis , (ON CA), 1979 45 CCC 2d 546 Ontario Court of Appeal noted that “totalacceptance of one side” and “total rejection of the other side” are not the only alternatives open to the court or jury and that something inbetween can include simply being unable to resolve the conflicting evidence and accordingly being left in a state of reasonable doubt. Based on the totality of the evidence I am not satisfied beyond a reasonable doubt that the Crown has proven its case.

The most criticalpieces of evidence relied on by the Crown are the drugs under the front passenger seat, the cannabis marihuana in the closed centreconsole and the blue bandanna being placed under the seat. First of all, I do not accept Constable Rice’s evidence that the accusedplaced the blue bandanna under the passenger seat. Constable Rice is mistaken. The other police officer’s and the accused say that theblue bandanna was in the cup holder. The officer say they did not move the blue bandanna prior to taking the photograph.

This makessense and accords with police practice with respect to handling any potential exhibits. Constable Rice says he was standing back just outof view of the accused on the passenger side. This is a small car and I am not satisfied the officer could clearly see where the accusedplaced the blue bandanna. The marihuana was found in the centre console which was closed. The officers did not testify to any smell orodour of marihuana in the vehicle. The drugs under the seat were not in plain view even though they could be reached easily by thepassenger, providing he knew they were there.

The accused had no obligation to look under the seat when he entered the vehicle. Thereis no evidence that the accused handled these packages in any way. The packages were closer to the drivers side than the passenger doorside. It would only be speculation to say how they got there. In my view it does not matter as I am not satisfied that the location of thedrugs proves the accused was in possession. [29] The Crown argues the accused should have seen the blue bong protruding from the cardboard box in the back seat behind thedriver’s seat. Mr. Marckoski says he did not see it. I accept his evidence.

Even if he had seen it it is insufficient on its own or even withthe other evidence to infer possession on the part of the accused. The accused testified and explained the reason he had cash on him. This explanation is not inconsistent with the way an individual without a steady job or permanent residence lives. The fact the accusedhad eighteen twenty dollar bills on him is inconclusive as well. This is the most common denomination one receives from a bankmachine and people not involved in purchasing drugs could easily have this denomination on them. I cannot totally reject the accusedexplanations. [30] Mr.

Marckoski told the officer he had weapons on him. He explained the reason for this. I cannot totally reject the accusedexplanation. It is not uncommon for individuals especially someone who had been a gang member to have weapons of some sort to carryfor protection. [31] The evidence is that the registered owner of the vehicle is the co-accused. The co-accused told the officer about themarihuana in the centre console. The acer cell phone that was analysed that the majority of the messages made no reference to theaccused. The reference at 3:50 a.m. to a Zack was not in the context of drugs.

The accused has no aliases. There was other references toother people. The rest of the drugs, cash and cell phones were found in items belonging to the co-accused and in the trunk of thevehicle. No evidence points to Mr. Marckoski exercising any control or having any knowledge of these items. There was a driverslicence of two other males found in the belongings of the co-accused. Therefore on the totality of the evidence the Crown has not met itsburden. [32] However that does not end the matter.

The Crown relies on the spontaneous utterance that Constable Rice testified wasmade by the accused and in cells in the afternoon. Constable Rice’s evidence is that when he went to the accused cell to get a quicksignature on a recognizance from the Regina Police, that the accused asked what happened with the girl. When told she was in cells, hestated that all the drugs were his. This would seem to clinch the case for the Crown. However the officer made no mention of this verbalconfession in any notes or reports until July 27. That is the first record of this conversation.

The officer prepared his report with respect

to the weapon charges the same day. The officer also made notes of events as they unfolded at the time of the initial vehicle stop, search and dealings with the accused including giving the accused his right to counsel on both occasions. The officer testified he did not have two minutes to spare to jot down a note about this important development being “the confession”. The officer said he only makes notes of facts that he might forget. He claimed he would not forget this admission.

The officer agreed that good note taking is important and that it is part of the training officers receive. [ 33 ] In R v Garvie , 2016 SKPC 142 , Judge Agnew discusses the police obligation to record statements and confessions in the context a

Section 7 Charter breach application paragraph 24 Judge Agnew discusses the obligation of the police to make notes. Judge Agnew refers to the Supreme Court of Canada case of Wood and Schaeffer , 2013 SCC 71 , where the court talks about the duty of the police to prepare accurate detailed and comprehensive notes as soon as practicable after an investigation. The Court notes that matters related to the investigation should be recorded. The principle of fairness should not be undermined. It can hamper the defence and the system as a whole.

The Court concluded that the police should err on the side of caution and make proper notes even if it is not clear such notes are required. Constable Rice testified that these utterances by the accused were made in response to a question the accused posed to him about the “girl”. The Crown is saying this is a confession and sufficient to convict Mr. Marckoski of the drug offences. Constable Rice is a very experienced officer. He was aware of the situation at the time and the fact that initially he only charged Mr. Marckoski with the weapons offences. The drug charges are certainly much more serious.

He was aware the co-accused was the driver and registered owner of the vehicle and it was not until a search of the vehicle had been completed that he charged Mr. Marckoski with the drug offence. Constable Rice also testified that when he is giving a person his Charter rights and police warning that he is careful to make sure than anything an accused says is not a result of lies or promises and that an accused is of sound mind. Constable Rice testified he always errs on the side of caution with the interests of the accused in mind.

Constable Rice also testified he told Constable Biniaris and Constable Schwabe about this confession. However the evidence is not clear whether he told the other officers that day or when he included it in his report. Neither Constable Biniaris nor Constable Schwabe mentioned being told this in their evidence. I find it troubling that an officer with as much experience as Constable Rice did not take the time to record in some manner these comments or utterances by the accused which the Crown wants to use to secure a conviction.

I find it difficult to accept the officer’s explanation as to why he did not make any notes about this confession until sometime later. In the circumstances I cannot rely on this confession to convict. [ 34 ] In the present case unlike many cases cited to me, the accused took the witness stand and testified that he did not have this conversation with Constable Rice. He recalls being awakened by the officer and given some paperwork. In addition he denied any ownership, knowledge or control of the drugs in the vehicle.

The Crown suggested that the accused evidence at this stage comes a little late in the day, after spending several months in custody when he could have made up this story. In my view this characterization is unwarranted. This is not alibi evidence. The accused, by his not guilty plea, has taken the witness stand and denied the charges. This is the accepted way in which an accused denies charges. There is nothing more Mr. Marckoski should or could do in his defense. I note throughout Mr.

Marckoski was cooperative with Constable Rice followed all commands, volunteered information about the BB gun and knife on his person. [ 35 ] In conclusion when I consider all of the evidence including the alleged confession I still am left with a reasonable doubt. It would not be safe to convict on this alleged statement made by Mr. Marckoski. I cannot discount Mr. Marckoski’s explanations. The circumstantial evidence viewed in its entirety is subject to other reasonable inferences other than the accused being in any form of possession of the drugs.

Therefore I still have a reasonable doubt and that doubt is resolved in favour of the accused. He is not guilty as charged. ______________________ Gordon, J